Gividen v. Fochesatto et al

Filing 14

ORDER: The Defendants have filed a 12 Motion to Dismiss. The Court NOTIFIES Plaintiff YOU HAVE THIRTY-THREE DAYS FROM JULY 21, 2017 TO RESPOND TO THE MOTION TO DISMISS. If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. Signed by Magistrate Judge Bruce G Macdonald on 7/21/2017. (See attached Order for details) (KEP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

JoAn Ada Gividen,
Plaintiff,

10
11
12

ORDER

v.
Dr. Luciano Fochesatto, M.D., et al.
Defendants.

13
14
15

No. CV-17-00118-TUC-JGZ (BGM)

On July 17, 2017, the Defendants filed a Motion to Dismiss (Doc. 12). The Ninth

16

Circuit Court of Appeals requires the Court to provide pro se prisoners with notice of the

17

requirements of Summary Judgment under Rule 56, Federal Rules of Civil Procedure.

18

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Similarly, the Ninth Circuit has required

19
20
21
22

notice be provided when a motion to dismiss has been filed. See Stratton v. Buck, 697
F.3d 1004 (9th Cir. 2012). This Court provides notice to all pro se litigants, and as such
notifies Plaintiff of his rights and responsibilities pursuant to Stratton.

23
24
25
26
27
28

Accordingly, the Court NOTIFIES Plaintiff as follows:
1.

The Defendants have filed a motion to dismiss pursuant to Rule 12(b)(1),

Federal Rules of Civil Procedure, on the grounds that this Court lacks subject matter
jurisdiction over Plaintiff’s claims because there is not complete diversity of citizenship.

1
2

Defendants’ motion (Doc. 12) is also made pursuant to Rule 12(b)(6), Federal Rules of
Civil Procedure, on the grounds that the First Amended Complaint (Doc. 10) fails to state

3
4
5
6

a medical malpractice claim. The motion will, if granted, result in the dismissal of your
case. When a party you are suing makes a motion to dismiss for lack of subject matter
jurisdiction and a failure to state a claim, and that motion is properly supported by

7
8

declarations (or other sworn testimony) and/or documents, you may not simply rely on

9

what your complaint says. Instead, you must set out specific facts in declarations,

10

depositions, answers to interrogatories, or other documents, that contradict the facts

11
12

shown in the Defendants’ declarations and documents, and show that this Court does

13

have jurisdiction over this case and that you have in fact stated a claim. If you do not

14

submit your own evidence in opposition, the motion to dismiss, if appropriate, may be

15

granted and the case dismissed. If the court grants the motion to dismiss your case

16
17
18
19

will be over and there will be no trial.
a.

The declarations or other sworn testimony setting out your specific

facts must be made on personal knowledge, must set forth such facts as

20
21

would be admissible as evidence, and must affirmatively show that the

22

affiant is competent to testify regarding the matters in the declaration or

23

other sworn testimony.

24
25

b.

If the Court determines that any of the declarations or other sworn

26

testimony are made in bad faith, the Court may order the party employing

27

the bad faith to pay the other party for costs associated with controverting

28

that testimony, including the other party’s attorney’s fees.
-2-

1

c.

2

If you do not submit your own evidence in opposition to the Motion,

the moving party’s evidence might be taken as truth and those claims

3
addressed in the Motion to Dismiss will be dismissed without a trial. If

4
5
6

that occurs, there will be no trial on those claims.
2.

YOU HAVE THIRTY-THREE DAYS FROM JULY 21, 2017 TO

7
8

RESPOND TO THE MOTION TO DISMISS. See LRCiv. 12.1; LRCiv. 56.1(d); Fed.

9

R. Civ. P. 6(e).1 If you do not respond to the Motion to Dismiss, your failure to respond

10

can be viewed by the Court as you agreeing with the Motion. See LRCiv. 7.2(i). If that

11
12
13
14

occurs, those claims addressed in the motion to dismiss will be dismissed, and there
will be no trial on those claims.
3.

15

WARNINGS
a.

Address Changes

16
17
18
19

Plaintiff must file and serve a notice of a change of address in accordance with
Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion
for other relief with a notice of change of address. Failure to comply may result in

20
21

dismissal of this action.
b.

22
23
24
25
26
27
28

Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See
LRCiv. 5.4. Failure to comply may result in the filing being stricken without further
notice to Plaintiff.
1

The Local Rules of Civil Procedure (“LRCiv.”), Rules of Practice of the U.S.
District Court for the District of Arizona, are available on the Court’s public website,
http://www.azd.uscourts.gov/.
-3-

1
2

c.

Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including

3
4
5
6

these warnings, the Court may dismiss this action without further notice. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action
for failure to comply with any order of the Court).

7
8

Dated this 21st day of July, 2017.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-